The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
Plaintiff Theresa W. Saunders brings this action against
Defendants the District of Columbia, Natwar M. Gandhi,
individually and in his official capacity as District of Columbia
Chief Financial Officer, and Earl C. Cabbell, individually and in
his official capacity as Supervisor. Plaintiff alleges that
Defendants unlawfully terminated her employment in the Office of
the Chief Financial Officer based on her race in violation of
42 U.S.C. §§ 1981, 1982, 1983, and 1985; her gender and age in
violation of Title VII, 42 U.S.C. § 2000e et seq.; and the
Federal False Claims Act, 31 U.S.C. § 3730. Before this Court is
Defendant District of Columbia's 12(b)(6) Motion to Dismiss
Plaintiff's Complaint for failure to state a claim. Based on the
reasons set forth in this memorandum, Defendant District of
Columbia's Motion to Dismiss is GRANTED in part, DENIED in part, DENIED WITHOUT PREJUDICE in part, and HELD IN
ABEYANCE in part.
This suit arises from the District of Columbia's termination of
Plaintiff's employment in 2000. Amended Complaint ("Am. Compl.")
¶ 26. Plaintiff is an African-American female, born October 11,
1954, who had been hired by the District of Columbia in August of
1982. Am. Compl. ¶¶ 5, 10. While employed by the District of
Columbia, Plaintiff served as financial manager, controller, and
Chief Financial Officer ("CFO"). Am. Compl. ¶ 16.
In 1999, Plaintiff was asked by then District of Columbia CFO
Valerie Holt to become Acting CFO for the Office of the Chief
Technology Officer ("OCTO"), headed by Chief Technology Officer
("CTO") Suzanne Peck. Am. Compl. ¶ 13. While serving as Acting
CFO for OCTO, Plaintiff alleges to have discovered and reported
on numerous contract payment violations as well as an overall
lack of internal control in management of funds connected to the
District's Y2K project. Am. Compl. ¶ 14. In September 1999,
Plaintiff forwarded to Ms. Peck a memorandum recommending a
disallowance of more than $13 million against a claim filed by
IBM. Am. Compl. ¶ 47. While Ms. Peck acknowledged the
recommendation, no action was taken. Am. Compl. ¶ 47. Plaintiff
alleges that after reporting on these inconsistencies, she became
the target of reprisals and that Ms. Peck called for Plaintiff to
be removed from OCTO and any OCFO position. Am. Compl. ¶ 14.
Plaintiff was reassigned as CFO of the District of Columbia
Lottery and Charitable Games Control Board ("D.C. Lottery"),
where she worked between October of 1999 and May of 2000. Am.
Compl. ¶ 10, 14.
In late May of 2000, Plaintiff was contacted by Stanley
Jackson, the District of Columbia's Chief of Staff for the Chief
Financial Officer. Am. Compl. ¶ 20. Mr. Jackson told Plaintiff
that she was being considered as a candidate to become a member
of the Special Projects Team ("SPT"), headed up by Defendant Earl Cabbell. Am. Compl. ¶ 20. On June 19,
2000, Plaintiff was informed by Mr. Jackson that she was being
transferred to the SPT. Am. Compl. ¶ 21.*fn1 When Plaintiff
informed Mr. Jackson that she was not interested in the staff
position because it would require her to change from a management
position to a staff position, Mr. Jackson told her that "it was
either take the transfer or have no job." Am. Compl. ¶ 21. As a
result of the transfer from CFO for the D.C. Lottery to SPT staff
member, Plaintiff's salary was reduced. Am. Compl. ¶ 21.
Plaintiff initially worked part-time at both SPT and the D.C.
Lottery in order to ensure a smooth transition at the D.C.
Lottery. Am. Compl. ¶ 22. Plaintiff reported to SPT full-time
beginning on June 30, 2000 and worked at SPT for approximately
three weeks. Am. Compl. ¶¶ 24, 25. On July 25, 2000, Plaintiff
was asked to meet with Lou Parker, who presented her with a
separation letter, dated July 21, 2000, which was to be effective
30 days after receipt. Am. Compl. ¶¶ 24, 26. Plaintiff was also
then informed that she was immediately placed on 30-days paid
administrative leave. Am. Compl. ¶ 26. The separation letter did
not include a reason for her termination, it merely stated
"[t]hat it is necessary to discontinue your employment with the
Office of the Chief Financial Officer (OCFO) for the District of
Columbia." Am. Compl. ¶ 26. Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC") on March 30, 2001 alleging sex discrimination. Am.
Compl. ¶ 3; Plaintiff's Exhibit ("Pl.'s Exh.") A.*fn2 Plaintiff alleges that her termination was both "directly and
solely attributable" to her gender and her race and "pretextual
in that the true reason for [her] termination was that the
Defendants were aware that she knew of the Defendants' sloppy
accounting procedures and fraudulent activities." Am. Compl. ¶¶
35, 36. Plaintiff states that both Defendant Gandhi and Defendant
Cabbell "did not believe in the appointment of females to CFO
positions."*fn3 Am. Compl. ¶ 17. Plaintiff states that after
her termination, she was replaced by a male. Am. Compl. ¶ 27.
Plaintiff's Complaint essentially sets forth six counts that
can be placed into three categories.*fn4 First, Plaintiff
alleges racial discrimination based on 42 U.S.C. §§ 1981, 1982,
1983, and 1985. Am. Compl. ¶¶ 14, 48.*fn5 Plaintiff's § 1981
claim is based on the discrimination she suffered in allegedly
not being permitted to report to District of Columbia CFO Mr.
Gandhi because of her race. Am. Compl. ¶ 30; Plaintiff's
Memorandum in Opposition to Defendant District Columbia's [sic]
Memorandum of Points and Authorities in Support of the Motion to
Dismiss ("Opp'n") at 16. Plaintiff's § 1982 claim is based on her
discharge from the OCFO. Am. Compl. ¶ 36; Opp'n at 17.
Plaintiff's § 1983 claim is based on the alleged deprivation of
her property and liberty interests when she was terminated in
violation of the Fifth Amendment. Am. Compl. ¶¶ 42, 43; Opp'n at 17-18. Plaintiff's Amended Complaint alleges a §
1985 claim based on Defendants' conspiracy to deprive her of her
rights. Am. Compl. at 14. Plaintiff alleges that her discharge
constituted gender and age discrimination in violation of Title
VII, 42 U.S.C. § 2000e et seq. Am. Compl. ¶¶ 36, 48; Opp'n at
19. Plaintiff alleges that her termination was a direct result of
her raising the issue of improper and fraudulent business
practices in violation of the Federal False Claims Act,
31 U.S.C. § 3730(h). Am. Compl. ¶¶ 35, 36. For the reasons set forth below,
Defendant District of Columbia's Motion to Dismiss is granted in
part, denied in part, denied without prejudice in part, and held
in abeyance in part.
Under Rule 12(b)(6), a motion to dismiss should be granted only
if the "plaintiff can prove no set of facts in support of [its]
claim which would entitle [it] to relief." Kowal v. MCI Commc'n
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Shuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). When
considering a motion to dismiss, the Court must resolve all
factual doubts in favor of the plaintiff and allow the plaintiff
the benefit of all inferences. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
Notwithstanding this liberal construction, "the court need not
accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint. Nor must the
court accept legal conclusions cast in the form of factual
allegations." Kowal, 16 F.3d at 1276; see also Papasan v.
Allain, 478 U.S. 265, 286 (1986). Since Plaintiff has attached
exhibits to her Complaint, those exhibits are considered by this
Court to be part of the Complaint, and will be considered in
determining the sufficiency of the Complaint. Fed.R.Civ.P.
A. Civil Rights Claims Plaintiff alleges civil rights violations of 42 U.S.C. §§ 1981
and 1982 based on race discrimination, 42 U.S.C. § 1983 based on
a deprivation of her liberty and property interest without due
process of law in violation of the Fifth Amendment, and
42 U.S.C. § 1985 based on a conspiracy to deprive her of her rights and
privileges. For the reasons set forth below, Defendant's Motion
to Dismiss is denied as to Plaintiff's § 1981 claim, granted as
to her §§ 1982 and 1985 claims, and denied without prejudice as
to her § 1983 claim.
1. 42 U.S.C. § 1981 Claim
Defendant's primary argument in support of its Motion to
Dismiss Plaintiff's § 1981 claim is that Plaintiff failed to make
out a claim of race discrimination in her Complaint and pleaded
only gender discrimination. Defendant District of Columbia's
Memorandum of Points and Authorities in Support of the Motion to
Dismiss ("Memo") at 5. Defendant relies on case law, none of
which is from this Circuit or the District of Columbia,
indicating that when an attached document contradicts statements
made in a Complaint, the document controls. Memo at 4 n. 2; Reply
Brief in Support of Defendant's Motion to Dismiss ("Reply") at
1-2. Defendant argues that Plaintiff's Exhibit A, Plaintiff's
EEOC discrimination charge, alleges only gender discrimination,
not race discrimination. Memo at 4. Therefore, Defendant argues,
Exhibit A is controlling and contradicts Plaintiff's allegations
of race discrimination in her Complaint, resulting only in an
allegation of gender discrimination, not race discrimination.
Id. If Defendant's argument is to be accepted, this Court would
have to dismiss ...